Dwight v Merrimans Local Aboriginal Land Council - [2024] FedCFamC2G 440

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dwight v Merrimans Local Aboriginal Land Council [2024] FedCFamC2G 440

File number: SYG 1559 of 2022

Judgment of: JUDGE D HUMPHREYS

Date of judgment: 17 May 2024

Catchwords: INDUSTRIAL LAW – Multiple contraventions of Fair Work Act 2009 (Cth) – Nature of employment relationship – Characterisation of employment relationship – Employee or tenant – Whether applicant employee of respondent – Right to control – Right to subcontract or assign – Where applicant and respondent entered into in a caretaker arrangement – Contracts – Contractual terms – Contractual interpretation – Where respondent in business as local Aboriginal land council – Application allowed – Applicant held to be part-time employee.

Legislation:
Australian Constitution s 51(xx)

Fair Work Act 2009 (Cth) ss 13, 14, 15A, 45, 87, 90, 323, 536

Independent Contractors Act 2006 (Cth)

Superannuation Guarantee (Administration) Act1992 (Cth) s 12

Land Rights Act 1983 (NSW) s 51

Long Service Leave Act 1955 (NSW)

Fair Work Ombudsman, Amusement, Events and Recreation Award 2010, MA000080, 1 January 2010

Fair Work Ombudsman, Amusement, Events and Recreation Award 2020 MA000080, 1 June 2020

Cases cited:
Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2) (2008) 252 ALR 136

Australia and New Zealand Banking Group Limited v Finance Sector Union of Australia (2001) 111 IR 227

Australian Mutual Provident Society v Chaplin (1978) 52 ALJR 407

Australian Woollen Mills Pty Ltd v Cth (1953-1954) 92 CLR 424

Braxton v Mendelson (1922) 233 NY 122

Burrows v Shire of Esperance (1998) 86 IR 75

CFMEU v Personnel Contracting Pty Ltd [2022] HCA 1

Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41

Commonwealth Bank of Australia v Barker (2014) 253 CLR 169

Connelly v Wells (1994) 55 IR 73

Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd (1915) AC 847

Efex Group Pty Ltd v Bennett [2024] FCAFC 35

Fair Work Ombudsman v Transpetrol TM AS [2019] FCA 400

Hart v Mills (1846) 15 LJ Ex 200

Hollis v Vabu (2001) 207 CLR 21

James Turner Roofing Pty Ltd v Peters [2003] WASCA 28

J H Nelson Pty Ltd (1947) 74 CLR 629

JMC Pty Limited v Commissioner of Taxation [2022] FCA 750

L’Estrange v F Graucob Ltd [1934] 2 KB 394

Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207

Lehigh Valley Coal Co v Yensavage (1914) 218 F 547 (2nd Cir)

Manchee v BTIG Australia Ltd [2022] FedCFamC2G 813

Marshall v Whittaker’s Building Supply Co (1963) 109 CLR 210

Merritt v Merritt [1970] 1 WLR 1211

Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37

Poletti v Ecob (No 2) (1989) 31 IR 321

R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138

Ray v Radano [1967] AR (NSW) 471

Solle v Butcher [1950] 1 KB 671

Taylor & Ors v Johnson (1982–1983) 151 CLR 422

Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148

Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCCA 4

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

Visy Paper Pty Ltd v Glass Granulates Pty Ltd [2014] NSWSC 1387 at [33]

World Book (Australia) Pty Ltd v Commissioner of Taxation (Cth) (1992) 46 IR 1

ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; 96 ALJR 144

Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561

Pollock, Frederick, Principles of contract: a treatise on the general principles concerning the validity of agreements in the law of England. (8^th edition, 1911)

Division: Division 2 General Federal Law

Number of paragraphs: 209

Date of last submission/s: 30 April 2024

Date of hearing: 13 March 2024

Place: Parramatta

Solicitor for the Applicant: Mr Aslanian (Connect Legal)

Counsel for the Respondent: Mr Meagher

Solicitor for the Respondent: Hall & Wilcox
ORDERS

SYG 1559 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
KEVIN DWIGHT

Applicant

AND:
MERRIMANS LOCAL ABORIGINAL LAND COUNCIL

Respondent

ORDER MADE BY:

JUDGE D HUMPHREYS

DATE OF ORDER:

17 MAY 2024

THE COURT ORDERS THAT:
1.Pursuant to s 545(2)(b) of the Fair Work Act 2009 (Cth) (“FW Act”) the Respondent is to pay the Applicant compensation for loss and damage that is to be determined.
2.Pursuant to s 547(2) of the FW Act the Respondent is to pay the Applicant interest (at such rate as the Court thinks fit) within 28 days of this order being made.

THE COURT DECLARES THAT:
3.The Applicant was a part time employee of the Respondent between 8 May 2014 to 5 November 2021.
4.The Respondent contravened s 45 of the FW Act by not paying the applicant a minimum wage.
5.The Applicant was an employee of the Respondent for the purposes of the Superannuation Guarantee (Administration) Act 1992 (Cth).
6.The Respondent contravened s 536(2) of the FW Act and failed to provide the Applicant payslips.
7.The Respondent was in breach of sections 87 (1), (2) and s 90(2) of the FW Act and did not accrue or pay the Applicant any annual leave during, and on termination of his employment.
8.The Respondent was in breach of s 116 of the FW Act and did not pay the Applicant any public holiday pay.
9.The Respondent contravened s 323 of the FW Act by not paying the Applicant in full including his applicable minimum wages, overtime rates, long service leave and loading.
10.The Respondent contravened s 4.2 of the Long Service Leave Act 1995 (NSW) by terminating the Applicant’s employment and not attending to the payment of the Applicant’s statutory long service leave.
11.The parties are to confer and agree, if possible, on the wages, long service leave and annual leave that the Applicant is entitled to based on the factual findings made by the Court.
12.The Court will hear from the parties as to the appropriate penalties to be imposed for the breaches found to have been proved at a separate penalty hearing.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION

This matter entails the legal characterisation of an employment relationship. The claim alleges multiple contraventions of the Fair Work Act 2009 (Cth) (“the FWAct”).
The applicant, Kevin James Dwight, alleges that he was employed by the respondent, Merrimans Local Aboriginal Land Council (“Merrimans”) as a caretaker at its premises in Bermagui and suffered loss and damage throughout the duration of his alleged employment.
The principal question in these proceedings is whether the applicant was an “employee” for the purposes of the FW Act, the Superannuation Guarantee (Administration) Act1992 (Cth) (“the SGA Act”) and a “worker” for the purposes of the Long Service Leave Act 1955 (NSW) (“the LSL Act”).
BACKGROUND
The applicant held the position of “caretaker” of the Umbarra Cultural Centre (“the Centre”) in the Wallaga Community, pocketed in the South Coast of NSW, some 14 kilometres north of Bermagui.
The applicant held the position of a caretaker between 8 May 2014 and 5 November 2021, during which he also resided at the accommodation owned by Merrimans. He did not pay any rent for that accommodation.
The relationship between the applicant and respondent was governed by a document, Exhibit A, entitled “Position Description” (“the Agreement”). The identity of the contracting parties is not in dispute.
In May 2014, the parties signed the Agreement. The nature and meaning of the Agreement are disputed by both parties. The applicant alleges that it is an employment contract. The respondent claims that it is something else entirely - a simple tenancy with some additional duties, or at most, a tenancy agreement and a contract for casual employment.
Prior to the signing of the Agreement, the respondent’s then Chief Executive Officer (“CEO”), Anne Greenaway, engaged in oral discussions with the applicant regarding the applicant moving into rent-free accommodation which was owned and operated by the respondent. This provision of free accommodation would come in exchange for the applicant offering caretaking services at the Umbarra Parcel of Land managed by the respondent.
The oral conversations between Ms Greenaway and the applicant catalysed the exchange of the Agreement for the applicant’s consideration. It was expressed to the applicant that any subsequent contractual relationship between the parties would first require approval from the Board of Merrimans.
On 1 May 2014, Ms Greenaway provided the Agreement to the applicant. Within the Agreement, it was conveyed to the applicant that the respondent was offering to codify the earlier oral agreement between the parties. That is, as a matter of quid pro quo, the applicant would live in the agreed upon rent-free accommodation in exchange for undertaking caretaker duties for the respondent.
On 8 May 2014, the applicant provided Ms Greenaway with a signed copy of the Agreement. It is undisputed that the Agreement was in written form and signed by both Ms Greenaway and the applicant.
It was alleged by the applicant that at around 11:00pm on 15 July 2021, someone entered the property and maliciously caused serious damage to the applicant’s motor vehicle. The applicant held the respondent liable for that damage. The respondent refused to pay any compensation for the damage caused to the applicant’s motor vehicle.
On 20 August 2021, the applicant left the Centre and subsequently, on 28 September 2021, the respondent wrote to the applicant to effectively terminate the Agreement.
THE EVIDENCE
This matter was heard as a one-day trial, commencing on 13 March 2024. Following the completion of evidence, closing submissions were filed by both parties.
Evidence was called from the following witnesses:
(a)The applicant;
(b)Ms Anne Greenaway;
(c)Mr Terrence Mark Hill; and
(d)Ms Dianne McVeity.
The applicant presented as a broadly credible witness, albeit introducing information at times that did not fit easily with the rest of his story. The applicant’s situation and other factual issues are discussed at length in both the background and proceeding sections.
Ms Greenaway was the CEO of Merrimans between August 2010 and August 2017. As CEO, Ms Greenaway was responsible for hiring employees on behalf of Merrimans. Ms Greenaway admitted during oral evidence that she signed multiple contracts with employees on behalf of Merrimans, including cleaners, administration officers, as well as trainees and casuals.
The Court notes that Ms Greenaway is an experienced CEO and currently holds board positions and directorships in her area of expertise, including being on the Board of SEARMS – an Aboriginal housing management service. Ms Greenaway has tertiary qualifications, including a Bachelor of Arts and a Masters of Letters, a Diploma in Business Management and a Certificate IV in Governance.
Mr Hill was the CEO of Merrimans between February 2018 and December 2020. During his oral evidence, Mr Hill agreed that the Centre was a “valuable” community asset.
Ms McVeity was employed by Merrimans as a Financial Officer and Office Manager from July 2018. Ms McVeity was acting CEO of Merrimans between 10 November 2020 and January 2021.
From January 2021 until her retirement on 10 March 2023, Ms McVeity was the permanent CEO of Merrimans. Ms McVeity gave oral evidence that she was not involved in the drafting of any contracts or contractual arrangements made prior to 2018, including those concerning Merrimans and the applicant.
The background of the Agreement
The following is taken from the evidence provided to the Court by the witnesses, intending to shed light on the background of the Agreement.
The contractual situation came into fruition after the applicant had a conversation with Mr Fergus McWhirter, the Vice President of the Bermagui Men’s Shed, regarding future caretaking prospects:
Applicant: Do you know anyone that would be looking for someone who could look after a property?
The applicant recalled during his oral evidence that he had this discussion with Mr McWhirter in relation to whether any caretaker opportunities existed, as he wanted to stay in the area. Counsel for the respondent, Mr Meagher, also asserted that the applicant was looking to move to a property where he may be able to maintain it for other persons.
During cross-examination, the applicant was asked the following:
Mr Meagher:    How well do you recall that conversation which occurred 10 years ago?
Applicant:       Like it was yesterday.
Mr Meagher:    Is there a reason you recall that conversation from 10 years ago so well?
Applicant:       Well, he told me about an opportunity and that ended up being the Umbarra Cultural Centre.
Mr Meagher:    Could I suggest to you that you said to him that you mentioned you needed somewhere to live and that he just suggested that Merrimans might have somewhere that you can live. Could that have been what occurred?
Applicant:       Yeah…it had accommodation, it was vacant and on the balance of them having sheds with long equipment, tools etc. He said to go and see Anne Greenaway and that it would be good to have a caretaker here to look after our sheds as well. And I said okay. He said go up and see Anne, so I did.
When taken to page five of the applicant’s Affidavit, outlining the conversation the applicant had with Ms Greenaway, the applicant could not recall verbatim what was said during that conversation. The applicant agreed to the wording provided at paragraph 23 of his Affidavit. The Court accepts this aspect of the evidence provided by the applicant as to the background and the manner in which the Agreement came into existence.
Ms Greenaway’s evidence on pre-contractual discussions was as follows. Ms Greenaway was directed to paragraph 11 of her Affidavit, where she stated the following with regard to pre-contractual discussions with the applicant:
Prior to this meeting, as CEO, I was aware from discussions with the Board of the Respondent that the Respondent had been looking for someone to live at the Dwelling since approximately 2010. The Centre is isolated from the general community and is surrounded by bush. During my time as CEO, I was aware of problems with young Members engaging in anti-social behaviour and causing damage to facilities at the Centre. The Board of the Respondent hoped that if a person was living in the Dwelling, this would act as a deterrent to the young Members trespassing. I had made one previous attempt to place an Aboriginal woman to live at the Dwelling but that had been unsuccessful because she said to me that she had left the Dwelling as she felt intimidated by the young Members.
Ms Greenaway agreed that around May 2014, Merrimans was seeking to find a responsible caretaker who could look after the property. Ms Greenaway agreed that during that period of time, she was an experienced CEO who had knowledge of tenancy agreements and an understanding of a caretaker’s role.
Ms Greenaway was directed to paragraph 15 of her Affidavit which stated the following:
During the conversation, I said that the Board may expect the place to be rented out and for him to do the normal maintenance of the residence expected of a tenant. The Applicant responded that he could do caretaker jobs instead of paying rent. I said I would put this to the Board as a possibility and get back to him.
Ms Greenaway did not reject the applicant’s proposition about conducting caretaker jobs and understood “caretaker” to mean “taking care” of the dwelling and only the dwelling – not the Umbarra Parcel of Land.
Ms Greenaway concurred that the Board wished to have a person living in the premises permanently to deter young members of the community from trespassing, justifying the need for the applicant’s presence.
During evidence, Mr Hill echoed Ms Greenaway’s narrative in this regard. Around 2014, Merrimans deemed it important to find a responsible person to act as a caretaker of the Centre.
Mr Hill was directed to paragraph 10 of his Affidavit which read:
I was aware that prior to 2014, the Respondent had been searching for a responsible person to live in the dwelling attached to the main building at the Centre in order to act as a caretaker as I was approached by Anne Greenaway at one time who enquired whether I was prepared to move into the Centre and live there. I declined the offer.
Mr Hill accepted during evidence that he was aware Merrimans was searching for a responsible person for the role of caretaker. Mr Hill also accepted that Ms Greenaway shared this information with him in 2014, prior to the applicant being brought on board. Mr Hill agreed that he had seen the Agreement, but Ms Greenaway had not provided him with a copy of it, nor shown him the Agreement prior to his commencement as CEO of Merrimans.
Mr Hill remarked that he first became aware of the existence of the Agreement approximately two months after he commenced as CEO of Merrimans in February 2018. However, his Affidavit stated, at paragraph 13:
At the time of starting work as the CEO of the Respondent, I was not aware of the document entitled, ‘Position Description’. This did not come to my attention until several years later when various Members of the Board of the Respondent put pressure on me to remove the Applicant from the Dwelling.
Mr Hill clarified during evidence that he became aware of the existence of the Agreement shortly after he commenced as the CEO.
Mr Hill also stated that he was aware that the applicant was a resident at the Centre as a caretaker, and that Ms Greenaway had allegedly told him.
The Court accepts that Ms McVeity was involved to a significantly lesser degree and possessed less knowledge about the Agreement than both Ms Greenaway and Mr Hill. When Ms McVeity was taken to the Agreement between Merrimans and the applicant, she made clear that she was not familiar with it, claiming that during her term as CEO, she was not aware of the existence of the Agreement.
The Court accepts the above evidence from all four witnesses to be truthful regarding the background of the Agreement. The issue for determination concerns the terms of the Agreement and the performance of the Agreement, which flows through to establishing whether an employment relationship existed between the parties, and if so its practical impacts.
The Agreement and its terms
The relationship between the applicant and Merrimans was one governed by the written Agreement.
The terms of the Agreement are divided into three sections: the purpose of the position, the applicant’s duties, and what Merrimans was to provide the applicant in return for his services. The bottom page of the Agreement is dated 8 May 2014 and showcases the applicant’s signature.
The terms of the Agreement are set out in full below:
Position Description
Position Title: Caretaker, Umbarra Cultural Centre
Employer: Merrimans Local Aboriginal Land Council
Remuneration: As per agreed
Hours: Live On-Site
Reports to: CEO, Merrimans LALC
PURPOSE OF POSITION:
•The position will work closely with the CEO of Merrimans to ensure the security and general up-keep of the building/s and garden areas of the location known as the Umbarra Cultural Centre.
•The position is a live-in one where in exchange for the subsidised accommodation, the position holder will undertake duties commensurate with a general handyman’s duties.
DUTIES:
•Ensure that all areas are secured when not in use;
•Keep external areas of the building, verandahs, doors, windows and all paths clean and tidy and regularly maintained;
•Maintain established gardens keeping clean and tidy and weeded regularly;
•Maintain in good working order, including cleaning inside and out, all accessible white goods on the premises, turn off when not in use and store appropriately;
•Maintain accommodation provided to standards required under the Rental Tenancy Act;
•Put Rubbish Bins out regularly;
•Report any issue that requires spending of money and gain permission to undertake work or purchase prior to undertaking to the CEO of Merrimans LALC. E.g. pest infestations, any repairs and maintenance etc.
•Report all break-ins, vandalism, abuse and trespassing by unknown people to the Police and Merrimans;
•Inform Merrimans of any trespassing by the Wallaga Community for instructions;
•Report Bushfires and other critical incidents to the appropriate authority immediately and advise Merrimans when able;
•Adhere at all times to Merriman’s policies and procedures as they relate to complaints and other grievances and other relevant guidelines including the maintenance of absolute confidentiality of Merriman’s and Umbarra Centre’s information and the following of a strict code of ethics as regards to Merriman’s business;
•Other duties as directed.
In return/recompense for the duties undertaken Merrimans LALC will:
1.Provide on-site accommodation in a one bedroom unit;
2.Provide Electricity with a negotiated contribution made by the Caretaker;
3.Installed LPG gas heating and ceiling fans for hearing and cooling, with gas to be provided by the Caretaker at own cost;
4.Permit the installation of land-line and internet communication at Caretakers cost;
5.Undertake an annual review which will include an inspection of the accommodation quarters. An Action/Task List may be generated from that review which should be completed over the intervening 12 months; and
6.Give one (1) months’ notice of the termination of this position including accommodation and the Caretaker to give 14 days’ notice if they wish to terminate the arrangement.
DOES THE ‘AGREEMENT’ CONSTITUTE A TENANCY?

During the course of the hearing, counsel for the respondent conceded that the Agreement between the parties was not a tenancy agreement. In written submissions, this position was resiled from, with it being submitted that the Agreement should be conceptualised as one of a tenancy/boarder with the provision of free accommodation in return for the performance of duties.
The Court does not accept this characterisation. While the Agreement features terms that are certainly congruent to a tenancy, there are other terms which indicate otherwise. For example, an annual review is a term which is unique to employment, and albeit it includes an inspection, it is not limited to only an inspection. An action list was to be generated for completion over the next 12 months. This is indicative of the fact that the applicant’s work was being assessed, not solely in reference to his accommodation, but to the other external tasks he undertook in the surrounding areas. The Agreement was not for a fixed term, it was continuing. No reference was made to applicable tenancy laws, including the rights and obligations of a landlord and tenant. If the Agreement is not that of a tenancy, then the only alternative options are that of a either a contract for the provision of services or an employment contract.
THE VALIDITY OF THE AGREEMENT PER THE LAWS OF CONTRACT
The validity of the Agreement is not in question, though it may be useful to summarise its features in the law of contract for completeness.
The law of contract is well-settled. An offer is a willingness to contract on specific terms and conditions which will become binding upon the acceptance of the person to whom it is addressed, as well as becoming a promise which seeks quid pro quo; (see: Hart v Mills (1846) 15 LJ Ex 200 (“Hart v Mills”); Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424 (“AWM v Cth”)). There is no doubt that Ms Greenaway made an offer to the applicant, as evidenced by the contents of the Agreement. In the most “natural” and “reasonable” view of the meaning of the words of her offer in the Agreement, Ms Greenaway’s intention was to be bound immediately on behalf of Merrimans upon the applicant’s acceptance; (see: Hart v Mills).
The applicant, or the “offeree”, unconditionally accepted the offer to enter into a contract with Merrimans on the terms provided for in the Agreement. This is evidenced by his signature at the end of the Agreement. It was an absolute and unqualified acceptance made based on reliance of the offer.
For an agreement to be binding, the parties entering such an agreement must have intended to create legal relations. Thus, it was said in AWM v Cth at [457] and Westpac Banking Corporation v Bell Group Ltd (in liq) (No 3) [2012] WASCA 157 at [1326] that:
It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty.
A court decides the intention to create legal relations based on an objective, not subjective, intention, which means the parties do not actually need to intend to create legal relations; (see: AWM v Cth at [457]; Taylor & Ors v Johnson (1983) 151 CLR 422 at [429]). Rather, the test is whether a reasonable person would regard the Agreement as intended to be binding; (Lord Denning in Merritt v Merritt [1970] 1 WLR 1211 at [1213]). The current case is relatively straightforward on this front. There was a clear, undisputed intention to create legal relations and be bound by the terms of the Agreement. This is illustrated by a summary of Ms Greenaway’s evidence to the Court:
Mr Aslanian: Just having a look at that contract which you drafted, you agree with me that by you signing the contract, whatever you think the terms and conditions might be, that you agree that by signing that document you agreed to be bound by the duties and obligations imposed in that contract on behalf of the council?
Ms Greenaway: Yes
In the words of Scrutton L.J. in L’Estrange v F Graucob Ltd [1934] 2 KB 394 at [403]:
When a document containing contractual terms is signed, then, in the absence of fraud, or, I will add, misrepresentation, the party signing it is bound, and it is wholly immaterial whether he [or she have] read the document or not.
Based on this, the Court is satisfied that upon the parties’ signing of the Agreement, the Agreement was intended to possess a legally binding character.
Finally, the substance of a contract should be sealed with consideration. A very helpful definition of consideration was provided by Sir Frederich Pollock in Pollock on Contracts 8^th ed 1911, which was later endorsed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd (1915) AC 847 at [855]:
An act or forbearance of one party, or the promise thereof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable.
In the current case, the Court is satisfied that the applicant agreed to undertake the duties outlined in the Agreement in exchange for Merrimans providing him with accommodation and electricity. The terms of the Agreement itself specify that Merrimans would provide consideration, as apparent in the language of “in return/recompense for the duties undertaken Merrimans will…”. Furthermore, the Agreement also stated the following:
The position is a live-in one where in exchange for the subsidised accommodation, the position holder will undertake duties commensurate with a general handyman’s duties.
There was thus good consideration on behalf of both parties.
The Court is satisfied as to the validity of the Agreement as binding upon both parties as a valid contract.
THE ALLEGED CONTRAVENTIONS
In a Statement of Claim filed on 27 October 2022, and later, in Submissions filed on 4 April 2024, the applicant alleged six contraventions of the FW Act, one contravention of the LSL Act and one contravention of the SGA Act. The applicant asserts that a number of workplace rights arise as a result of his alleged employment and claims many of them were contravened. The rights allegedly contravened by the respondent between 8 May 2014 and 5 November 2021, according to the applicant, are summarised as follows:
(1)Contravening a modern award.
(2)Failure to recognise the applicant as an employee for the purposes of the Superannuation Guarantee (Administration) Act 1992 (Cth).
(3)Failure to provide payslips.
(4)Contravening the National Employment Standards.
(5)Failing to pay the applicant annual leave during his employment and on termination of his employment.
(6)Failing to pay the applicant his applicable minimum wages, overtime rates, long service leave and loading.
(7)Failing to pay the applicant statutory long service leave after terminating his employment.
(8)Breaching the employment contract by failing to pay for the damage, repair and maintenance of the applicant’s motor vehicle.
THE LAW ON ESTABLISHING EMPLOYER-EMPLOYEE RELATIONSHIPS
Part 1-2, Division 3 of the Act sets out the meaning of national system employee. Section 13 of the FWAct provides as follows:
Meaning of national system employee
A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.
Note: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.
Section 14 of the FWAct provides the meaning of a national system employer:
(1)      A national system employer is:
(a)       a constitutional corporation, so far as it employs, or usually employs, an individual; or
(b)       the Commonwealth, so far as it employs, or usually employs, an individual; or
(c)       a Commonwealth authority, so far as it employs, or usually employs, an individual; or
(d)       a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:
(i)        a flight crew officer; or
(ii)       a maritime employee; or
(iii)      a waterside worker; or
(e)       a body corporate incorporated in a Territory, so far as the
body employs, or usually employs, an individual; or
(f)       a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.
Note 1: In this context, Australia includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see the definition of Australia in section 12).
Note 2: Sections 30D and 30N extend the meaning of national system employer in relation to a referring State.
Particular employers declared not to be national system employers
(2)      Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:
(a)       that employer:
(i)        is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or
(ii)       is a body established for a local government purpose by or under a law of a State or Territory; or
(iii)      is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and
(b)        that employer is specifically declared, by or under a law of the State or Territory, not to be a national system employer for the purposes of this Act; and
(c)        an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer.
(3)       Paragraph (2)(b) does not apply to an employer that is covered by a declaration by or under such a law only because it is included in a specified class or kind of employer.
Endorsement of declarations
(4)      The Minister may, in writing:
(a)endorse, in relation to an employer, a declaration referred to in paragraph (2)(b); or
(b)       revoke or amend such an endorsement.
(5) An endorsement, revocation or amendment under subsection (4) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the endorsement, revocation or amendment.
Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the endorsement, revocation or amendment (see regulations made for the purposes of paragraph 54(2)(b) of that Act).
Employers that cannot be declared
(6)      Subsection (2) does not apply to an employer that:
(a)       generates, supplies or distributes electricity; or
(b)        supplies or distributes gas; or
(c)       provides services for the supply, distribution or release of
water; or
(d)       operates a rail service or a port;
unless the employer is a body established for a local government purpose by or under a law of a State or Territory, or is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, such a body.
(7)      Subsection (2) does not apply to an employer if the employer is an Australian university (within the meaning of the Higher Education Support Act 2003) that is established by or under a law of a State or Territory.
THE LEGAL CHARACTERISATION OF THE RELATIONSHIP: WAS IT THAT OF EMPLOYER-EMPLOYEE?
The applicant’s submissions
The applicant submitted that the Court should proceed under the principles set out by the High Court in CFMEU v Personnel Contracting Pty Ltd [2022] HCA 1 (“Personnel Contracting”).
The applicant submitted that where a contract exists, the characterisation of such a relationship between the parties – including their rights and obligations – must be dictated by that contract. Both parties agreed to this interpretation.
The parties agreed that the Court could have regard to some external circumstances which were objectively known to the parties at the time of the Agreement.
The applicant relied on Efex Group Pty Ltd v Bennett [2024] FCAFC 35 (“Efex Group”), which governs the nature of a relationship where no written contract is drawn. The applicant cited the following principles as per Katzmann and Bromwich JJ at [13] – [14]:
Once the contours of the legal relationship are identified, its characterisation as one of employment or not often hinges on two considerations identified in Personnel Contracting, in particular by Kiefel CJ, Keane and Edelman JJ at [36] – [39], each of which may involve questions of degree, namely:
(a)the extent to which the putative employer has the right to control how, when and where the putative employee performs the work; and
(b)the extent to which the putative employee can be seen to be working in their own business as distinct from the putative employer’s business.
However, as a cautionary note, in some circumstances the proper analysis may be more nuanced than that. As Gordon J pointed out in Personnel Contracting at [181] – [183] (Steward J agreeing), asking whether a person is working for their own business may not always be a “suitable inquiry for modern working relationships”, given that it may not take much for even a low skilled person to be carrying on their own business. Analysis based on this dichotomy may distract from the relevant underlying analysis of the totality of the relationship created by the contract. It may also direct attention to non-contractual considerations, which are not relevant unless forming part of the contract itself. The better question may be to ask whether, by the terms of the contract, the person is contracted to work in the business or enterprise of the purported employer, so as to maintain the correct focus. That is, if the contract does not lead to the conclusion that the person was working in the business of the asserted employer, then the person will not be an employee. This approach has some traction in this case.
The applicant cited Lee J at [58] in Efex Group to assert that post-contractual conduct evidence is admissible to resolve matters that were mentioned during the formation of the contract. The applicant submitted that the Agreement in this instance sets out in detail the parties’ obligations. Hence, the Court should have little regard to any post-contractual conduct, and even where it does, it should only be for the purposes of ascertaining the implications of unwritten terms. The Court should find that the rights and obligations outlined in the Agreement signify the existence of an employment relationship.
The applicant submitted that the respondent conceded at the hearing on the Agreement was more than a mere tenancy.
The applicant alleged that the respondent failed to address why the respondent chose to include words in the Agreement to the effect of “position description” and “employer” if it intended to create a landlord-tenant relationship.
The applicant submitted that Ms Greenaway, when delivering her evidence, admitted that she intended to be bound by the terms of the Agreement on behalf of the respondent, without seeing any need to change its terms.
On the aspect of control, the written contract provided for the contractual rights and duties that would be expected of an employer over an employee, and the Court should not entertain any claims given otherwise by the relevant CEO as to their right to direct. The Agreement must be looked at in totality in order to consider whether the terms in the Agreement constitute an employer-employee relationship.
The express inclusion of the word “employer” becomes a prerequisite to the creation of a legal relationship whereby the applicant owed duties to the respondent and vice versa.
The written Agreement outlines that the applicant “reports to: CEO Merrimans LALC”, which is an express term that implies the CEO can exert control over the applicant with respect to directions. This, in turn, creates a legal relationship between the two parties.
The Agreement also sets out that “the position will work closely with the CEO”, which enlivens a duty on behalf of the applicant to report to and be assessed on his work performance by the CEO.
The Agreement reads that the applicant “must gain permission to undertake work or purchase prior to undertaking to the CEO”, setting out the express requirement that the applicant was to first seek permission as per the authority and control of the CEO.
The words “report” and “inform” included in the Agreement – alongside the previous clauses – signify that the applicant was to report to the respondent.
The Agreement includes the respondent’s policies and code of conduct as to what the applicant was permitted to do, for the benefit of the respondent.
The Agreement further reads that the applicant must perform any “other duties as directed”, which signifies an unequivocal right the respondent had over the applicant in terms of directing him to perform work.
The Agreement states the following: “In return/recompense for the duties undertaken”. This established the obligation that the applicant was required to comply with his duties as it were to result in due recompense.
At the signature panel in the Agreement, the following was outlined: “I have read this Job Description and understand what is expected of me whilst in this position.” The key word “expected” indicates that the respondent was in control of the expectations set.
The applicant submitted that the supplementary question of whether the applicant was a caretaker is a key requisite to the degree of control exercised over his activities. A caretaker can be defined as a person who cares for another’s property. Accordingly, the applicant was a caretaker – a position Ms McVeity conceded during her evidence that she considered one of employment, albeit denying that the applicant was a caretaker.
Each of the respondent’s witnesses provided oral evidence that the applicant would regularly approach them to undertake work – a request which was either granted or refused. The fact that the CEO may, at times, have denied the applicant to undertake work on certain things is irrelevant to the inquiry regarding whether the respondent had the authority to exert control based on the written terms of the Agreement.
While the respondent submits that the duties performed by the applicant were consistent with that of a tenant or boarder, the purpose of the Agreement is stated as follows, according to the applicant (Applicant Submissions filed 4 April 2024 at [31]):
1.the contract clearly sets out that the purpose of the position is to: “work closely with the CEO … To ensure the security and general upkeep of the buildings and garden areas of the location known as the ‘Umbarra Cultural Centre.’” The contract then sets out that: “The position is a live in one where in exchange for subsidized accommodation, the position holder will undertake duties commensurate with a general handy man’s duties.” The duties list below then must be read in the context of what the contract says is “the purpose of the position”. The contract does not say the purpose of the position is Applicant being a tenant.
2.critically, the contract makes a clear and unequivocal delineation in its express terms of: “accommodation” which when reading the contract is understood to be the Applicant’s accommodation (a small dwelling attached to the Umbarra Cultural Centre, but not forming part of the Umbarra Cultural Centre), as distinct from the “Umbarra Cultural Centre” itself and the: “buildings and garden areas” of the location known as the Umbarra Cultural Centre;
3.understanding then that there is a difference in how the contract treats the Applicant’s accommodation with the rest of the premises, the duties then will require that: “all areas are secured” and then “external areas of the building verandas, doors, windows and all paths, clean, tidy and regularly maintained.” And then: “maintain established gardens…” and finally and critically, the bullet point: “maintain accommodation provided to standards required under the Rental Tenancy Act.” That is to say that there is a separate and distinct bullet point which addresses only the: “accommodation provided” that is, a duty that his accommodation is maintained under the standards as required under the Rental Tenancy Act, which is separate and distinct from the: “Umbarra Cultural Centre”, “buildings”, “garden areas”, “all areas” and “external areas”, “building, veranda, doors, windows and all paths” and: “established gardens.”
4.Perhaps even more critically, the duties list includes, with the words: “other duties as directed” which is plainly a contractual term consistent with a work relationship, not of a tenant or a border.
(emphasis added).

The work undertaken by the applicant was that of a caretaker, and not an arrangement which required the applicant to work for himself. That is, he was not contracted to undertake work to benefit him nor for the purposes of adding value to his own business. He was not brought on to work as a volunteer or tenant, and he could not make earnings or losses from the type of work he performed. All of this, the applicant submitted, is derived from the express provisions of the Agreement.
The applicant submitted that the “totality of the relationship” must be considered by reference to the terms of the Agreement.
Regarding the purchasing of tools and equipment, the applicant was required to seek the permission of Ms Greenaway to do so. This, the applicant claimed, was consistent with the following term from the Agreement:
Report any issue that requires the spending of money and gain permission to undertake work or purchase, prior to undertaking to the CEO…
This indicates the applicant’s need to report to the CEO, particularly in seeking to expend funds. The applicant was not responsible for purchasing his own tools and equipment.
While the applicant agreed that the Agreement did not provide for the payment of superannuation, a wage, or leave entitlements, the Court should not view that as a definitive barrier towards the formation of an employment relationship. The applicant’s reasoning on this point can be summarised as follows:
·The words “employee” and “position description” used by the respondent in the drafting of the Agreement;
·While the respondent has submitted that the words “employer” are irrelevant to the Court’s analysis, that cannot be so because the paragraphs cited relate to the context of whether an employment relationship was fostered. More weight should be given to the fact that the Agreement states that the applicant was an employee rather than a tenant;
·At [58] of Personnel Contracting, parties are free to choose the terms of their contracts. This is applicable to situations where there exists a disparity in bargaining power and an employer attaches the phrase “independent contractor” to a contract, however, proceeds to set out rights and obligations contradictory to the actual relationship. Here, the respondent drafted the Agreement and relied on the use of the word “employer”, which should be indicative of the relationship;
·The ‘label’ set by the parties should only be ignored where that label is inconsistent with the actual right and obligations of the parties. Here, the label should stand because it is an accurate description; and
·While the respondent stated in their submissions at [20] that “neither party was legally sophisticated in assessing the legal status of the relationship established by the contract.” On the contrary, Ms Greenaway, as indicated by her evidence, was clearly a sophisticated former CEO who held senior positions on the Board of Directors at SEARMS and a Director of the NSW Aboriginal Legal Service.
The respondent submitted that because the Agreement did not specify any payment of wages or superannuation, this prevented an employment relationship. That cannot be maintained for the following reasons (Applicant Submissions filed 04/04/24 at [42]-[45]):
[42] First, that would mean that a person could contract with another person and have all of the normal terms that would be associated with employment, save for the fact that no wages would be paid and on the Respondent’s construction on the applicable law, that would not be an employment contract because it would be missing the wage pay bargain.
[43] Second, the Respondent has itself relied on a set-off defence, that is, it has pleaded that there is adequate consideration in the form of the rent-free accommodation.
[44] Third, the contract itself has a provision for remuneration, but the remuneration is “as per agreed” That is, that the contract contemplated a payment for remuneration, but simply expressed that there would be “as per agreed” and that agreement was free accommodation. The question for this Court is not a consideration of whether the bargain struck was fair or reasonable, but having regard to statutory minimum standards, the Respondent discharged its statutory obligations as an employer because of course, one cannot contract out of the payment of a minimum wage or statutory leave entitlements or superannuation.
[45] Finally and critically, the Respondent’s submission seems to be similar to arguments relating to Courts determining whether a person is an employee or a volunteer. Volunteers typically do not get paid any remuneration whatsoever and there is no work for wage bargain. The Respondent here as not pleaded or submitted or suggested that the Applicant was a volunteer. The relevant authorities that deal with volunteer relationships are summarised in the decision of Susan Bergman v Broken Hill Musicians Club Ltd T/A Broken Hill Musicians Club [2011] FWA 1143, as [21] and have no bearing to the Applicants application.
The applicant further submitted that the relevant award is the Amusement, Events and Recreation Award 2010 MA000080 (“the Award”) that is to be determined in accordance with the test in Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCCA 4, later upheld in the Full Court decision of Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148.
The applicant submitted that the work performed by the applicant was consistent with the duties of a Grade 3 worker under the Award, which includes gardening, operating machinery, ground controller duties, security, park maintenance, cleaning, pruning, irrigation, basic labouring, mowing lawns and brush cutting.
The applicant submitted that alternatively, in the circumstance where the Court finds that no Award is applicable, the respondent would still be obliged to remunerate the applicant at the minimum wage as set under the FW Act.
On the subject of the applicant’s work hours, the applicant submitted the following:
…the evidence is overwhelming, that he was a caretaker of the Umbarra Cultural Centre and performed work as a caretaker and for no other reason. The Applicant has already drawn the Court’s attention to the concessions that he was a care-taker and as a care-taker, from time-to-time, the CEO’s would ask him to perform work and the Applicant would perform that work. Mr. Dwight has provided evidence that even where he was not directed to perform a particular task, he would nevertheless perform it, not because of his volunteerism, but because he considered himself as a care-taker pursuant to the contract.
The applicant’s replacement when he left the premises was announced by Ms McVeity in her affidavit, stating that:
I arranged for the Crew and the men from the Men’s Shed to take over care and maintenance of the Centre.
This indicates that the applicant did perform work as a caretaker and a replacement needed to be arranged in his absence.
The applicant submitted that Ms Greenaway, during her oral evidence, conceded that she was rarely at the Centre, whereas both Ms McVeity and Mr Hill did witness the applicant engaging in some form of work on a day-to-day basis. It was submitted in accordance with Annexure ‘KD6’ of the applicant’s affidavit, he was aware of safety issues, reported those issues, and proceeded to return to work, indicating that he was engaged in the role.
The applicant told the Court the periods he was on leave and that he informed Merrimans of those arrangements. At most, he would take three weeks off.
The respondent’s submissions
The respondent submitted that an employment relationship should be assessed “solely” by reference to the rights and obligations under the contract – a view that both parties share.
The respondent asserted that many of the factors identified in authorities prior to Personnel Contracting remain relevant to the Court’s analysis, but only if they are reflected in the rights and duties outlined under the contract. Additionally, the Court should consider whether a person is serving the alleged employer in the employer’s business or carrying on a trade or business of their own to ultimately determine the character of the relationship between the parties.
Identifying an employment relationship is an “evaluative judgment that takes into account the totality of the parties’ contractual rights and obligations”; (see: JMC Pty Limited v Commissioner of Taxation [2023] FCAFC 76 (“JMC v Commissioner of Taxation”) at [27]).
Like the applicant, the respondent drew on Katzmann and Bromwich JJ in Efex Group at [36] – [39], as to questions of degree: the employment relationship must be decided with reference to the right to control and assessing the extent to which the alleged employee could be seen to be working in their own business as compared to the alleged employer’s business.
The respondent’s submissions on the performance of the Agreement were slim. The respondent submitted that the evidence from Merrimans’ three CEOs indicated that the applicant requested to conduct work around the property and was granted permission to do so. While Mr Hill conceded during evidence that he did sometimes “direct” the applicant to complete certain tasks, this was only the case in relation to “informal and minor requests”.
There is disagreement between the parties with regards to how much work the applicant actually performed (Respondent Submissions filed 19 April 2024 at [17(b)]) :
i.Mr Dwight claim[ed] he worked Monday to Friday, 8 am to 4.30pm (although at a later point he provides the timeframe of 8.30am to 4.30pm). However, in cross-examination he conceded he did not work these hours during the COVID pandemic.
ii.The three CEOs of Merrimans LALC say that he performed some upkeep/maintenance tasks around the premises from time-to-time, and generally performed less work than Mr Dwight alleges.
As to the interpretation of the Agreement, the respondent submitted that the principles of interpretation are well-settled in that the rights and liabilities of parties are determined objectives, with reference to its text, context and purpose; (see: Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37 at [46] per French CJ, Nettle and Gordon JJ). Upon application of this principle, the respondent asserted the following:
·“Purpose of position” is introductory and descriptive, but “Duties” include rights and obligations (which is of importance). The sentence outlining that the applicant “will undertake duties commensurate with a general handyman’s duties” should be read in light of the pre-contractual discussions. That is, that it was a tenancy-related arrangement with some upkeeping duties, which Ms Greenaway informed the applicant about as per him needing to conduct some work around the Centre.
·“Duties” listed in the Agreement are “overwhelmingly tenancy-related” and deal with the upkeep and security of the property, which did not require collaboration. There are only two aspects under “duties” which are not tenancy-related, which deal with upkeep and security.
·As to the degree of working “closely with the CEO”, it should be read in light of the applicant’s evidence that there were no pre-contractual discussions as to Ms Greenaway being the applicant’s supervisor, having regular meetings with her, talk of a probation period, or about the applicant’s ability to perform handyman tasks. Working “closely” should not be interpreted as anything more than reporting security-related issues.
·In relation to “Other duties as directed”, that section should be read as “limited to the directions of similar nature to his other duties recorded”, as supported by the principle of ejusdem generis, which outlines:
·“where there are general words following particular or specific words the general words should be confined to things of the same kind as those specified”; (see: Visy Paper Pty Ltd v Glass Granulates Pty Ltd [2014] NSWSC 1387 at [33] citing Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 at [639]); and
·“where a word “stands with” other words it “must mean something analogous to them””; (see: Visy Paper Pty Ltd v Glass Granulates Pty Ltd [2014] NSWSC 1387 at [35] citing Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207 at [30]).
·With regard to the requirement to comply with “policies”, Ms Greenaway stated in her evidence that other tenants of Merrimans were also required to comply with the same policies; it was not an element that controlled how or when the applicant performed pursuant to the Agreement.
It was submitted that the Agreement “lacked terms” granting Merrimans substantial control over the nature of the applicant’s work for the following reasons (Respondent submissions filed 19 April 2024 at [25]):
•very importantly, Merrimans LALC had no power to determine when Mr Dwight performed the duties. The duties requiring general upkeep and maintenance that could be performed at times suitable to Mr Dwight. This strongly indicates the lack of an employment relationship.
•also going to the extent of any control over when Mr Dwight may perform the work, there was no prohibition on Mr Dwight working for other employers or requiring him to obtain approval before working for another employer. It would have been entirely possible for Mr Dwight to perform another job while also completing the duties specified in the Written Contract.
•there was no term providing that Mr Dwight was subject to supervision or control of Merrimans LALC in how he performed the “DUTIES” (only that he “reports to” the CEO and “work closely” with the CEO, the proper interpretation of which is addressed at paragraph 21(b) above).
As to the aspect of running one’s own business, the respondent submitted that it is not a matter of “central importance” to consider whether the applicant was “conducting his own business”. Though, the respondent did acknowledge that there was “some utility in considering the extent to which” the applicant was working separately to Merrimans and its enterprise. The respondent maintained that it was relevant that:
(a)Mr Dwight was not required to work from the administration office, which is where Merrimans LALC employees worked. Rather, Mr Dwight’s ‘duties’ related to upkeep of the Umbarra Cultural Centre.
(b)Merrimans LALC was not required to pay Mr Dwight’s expenses for performing the duties.
(c)There were no general duties imposed under the contract to act in Merrimans LALC’s best interests or to ‘faithfully’ carry our responsibilities, as would be typically of an employee working in Merrimans LALC.
(citations omitted).
As to the tenant/boarder label asserted by the respondent, the respondent maintained that it is useful to identify the terms of the Agreement which are typical of a tenancy/boarder relationship because such terms do not always create an employment relationship. Accordingly, the respondent submitted that “both parties accept” the applicant “had a tenancy/boarding relationship” with Merrimans, and although some of the “duties” prescribed in the Agreement are better conceptualised as caretaker duties, they minimally go beyond a typical tenancy relationship.
Furthermore, it was submitted that the consideration provided by Merrimans was on-site accommodation and electricity, however, these amenities were not linked to the number of hours the applicant worked. Although the duties were specified as needing to produce “results”, those results were not indicative of a contract for employment; (see: World Book (Australia) Pty Ltd v Commissioner of Taxation (Cth) (1992) 46 IR 1 at [8]). Put another way, the form of remuneration provided in accommodation and electricity in exchange for the applicant producing “results” was not indicative of an employment relationship.
The applicant remarked that an absence of a leave provision in the Agreement signified a non-employment relationship.
As to the label attached to the relationship, the respondent claimed that in accordance with Personnel Contracting, the “label” used by parties is not determinative of the relationship and will not assist the Court in deciding upon it. The relationship should be decided in accordance with the contractual rights and duties of the Agreement. The respondent claimed that it can be:
…safely be inferred that the parties did not pay great attention to the accuracy of the legal terminology in the contract, and even if they did, this can hardly be relied upon as accurate.
As to the “totality of relationship”, the respondent noted that it was not an employment relationship for the following reasons:
(a) Mr Dwight’s duties under the Written Contract were overwhelmingly best conceptualised as tenancy/boarder-related duties;
(b)Merrimans’ LALC did not have any significant right to control how Mr Dwight performed his duties;
(c)Merrimans LALC did not have power to tell Mr Dwight when to perform duties; indeed, given this freedom, Mr Dwight could have worked for another entity at times that suited him;
(d)Mr Dwight was not to work at Merrimans LALC’s offices (ie with the other employees) or as part of Merrimans LALC;
(e) the Written Contract did not provide an entitlement to leave;
(f)this ‘consideration’ Merrimans LALC provided was by way of free accommodation and electricity, which was not linked to how many hours of work Mr Dwight performed, but by duties overwhelmingly best understood as requiring ‘results’; and
(g) Merrimans LALC did not agree to pay for any expenses for Mr Dwight.
The respondent submitted if the Court were to find an employment relationship, it should only be that of casual employment because the duties prescribed in the Agreement were chiefly tenancy/boarding-related rather than employment. Additionally, the only “duty” that could be characterised as “employment” duties would be those under the heading “other duties as directed”.
The respondent relied on the retrospective application of s 15A of the FW Act whereby the “duties as directed” were not “promised” as a “continuing and indefinite work according to an agreed pattern of work”. Because there were no set hours of work or a roster, the applicant was a casual employee because “employment” would only arise when the applicant was directed to perform work.
As to the hours of work, and keeping in mind Mr Hill’s evidence, Merrimans did not direct the applicant to work within the scope of an employment agreement since any work he undertook outside of his alleged employment was voluntary in nature. That is, the work the applicant undertook was tenancy or rental related.
The respondent submitted that the Amusement, Events and Recreation Award 2020 (“the Award”) could not have applied to Merrimans because that Award covered employees “in the amusement, events and recreation industry” and employees in the classifications set out in it. Merrimans does not qualify as being in this industry under s 51 of the Land Rights Act 1983 (NSW). Since the Centre was not used for community events until 2021, and the fact that the Centre is a “cultural centre” should not warrant it to fall within the ambit of the Award. Even if the Award did apply, the applicant would be a Grade 1 employee, given his low-level maintenance duties.
The respondent submitted that determination of which Award is to apply should be delayed until the characterisation of the relationship is finalised.
It is important to note that there was no claim by any of the parties that this was a sham contract or had been varied by the conduct of the parties. Nor did the parties request to have the Agreement set aside under statute or claim unconscionable conduct or estoppel.
The applicant’s supplementary submissions

In reply, the applicant submitted that the respondent’s claim at paragraph 20 correctly outlined the relevant principle governing the interpretation of contracts. Paragraph 20 reads as follows:
Before considering whether the Written Contract created an employment relationship, it is relevant to interpret parts of it. The principles of interpretation of contracts are well-settled:
The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.
Regard may be had to “events and circumstances external to the contract which are objective, known to the parties at the time of contracting and which assist in identifying the purpose or object of the contract”.50 But regard must not ordinarily be had to events that occurred after the contract when interpreting it (and no exception applies in this case).
That is, the rights and liabilities of parties must be determined objectively by reference to the text, context and purpose. The Court can have regard to events and circumstances, but only insofar as they are objectively known to the parties at the time the contract is being created.
The applicant claimed that the respondent’s submissions were not helpful as they diverted from the plain English meaning of the text outlined in the “position description”. The applicant suggested that the Court need not engage in further consideration of the Agreement as the literal reading of the text states the words “employer” and “purpose of position”. Such language, the applicant asserted, illuminates the respondent’s intention as it was the respondent who drafted the Agreement.
It was submitted that the principles set out in Efex Group at paragraphs [12] and [13] should be dovetailed to be read together:
[12] The central question that remains, under an unwritten contract as in a written contract, is whether or not a person is an employee. As was observed in Personnel Contracting at [39] per Kiefel CJ, Keane and Edelman JJ (see also [113] per Gageler and Gleeson JJ), while the dichotomy between a person’s own business and the putative employer’s business may not be perfect so as to be of universal application, because not all independent contractors are entrepreneurs, that approach is still useful. That is because it focuses attention on whether the putative employee’s work as contracted to be performed was so subordinate to the putative employer’s business as not to be part of an independent enterprise. It also avoids the danger of an impressionistic and subjective judgement, or ticking off a checklist, running counter to objective contractual analysis.
[13] Once the contours of the legal relationship are identified, its characterisation as one of employment or not often hinges on two considerations identified in Personnel Contracting, in particular by Kiefel CJ, Keane and Edelman JJ at [36] – [39], each of which may involve questions of degree, namely:
(a)the extent to which the putative employer has the right to control how, when and where the putative employee performs the work; and
(b)the extent to which the putative employee can be seen to be working in their own business as distinct from the putative employer’s business.
With respect to the relevant context and formation of the Agreement, the Court should have regard to the following points objectively known to parties at the time of contracting:
(a) the Respondent itself in writing, referring to the Applicant as a caretaker and not a tenant and / or a contractor;
(b)by Ms. Greenaway’s own admission, the Applicant said he wanted to be a care-taker and Ms. Greenaway then drafting the contract;
(c)       the Respondent was also seeking a caretaker of the Umbarra Cultural Centre;
(d)      that the Umbarra Cultural Centre was a very important community asset;
(e)       that the Umbarra Cultural Centre needed security;
(f)       that the Applicant was an experienced care-taker;
(g)that it was the ultimate objective of the Respondent to open the cultural centre for broader public consumption;
(h)      that the cultural centre was already being used by members of the community;
(i)       that the men’s shed were only there a handful of days per week;
(j)that Ms. Greenaway is an experienced and knowledgeable CEO with significant experience in drafting contracts;
(k)that Ms. Greenaway well understood the difference between a tenant and a care-taker and an employee;
(l)that Ms. Greenaway had extensive experience in drafting and / or knowing about tenancy contracts and deliberately made a decision not to give the Applicant a tenancy contract.
(citations omitted)
The applicant pointed out that the respondent’s submissions were asking the Court to “re-invent” the definition of the accepted meaning of English words with respect to pre-contractual events.
The applicant submitted that the words “other duties as directed” as guided by the principles of ejusdem generis would be incorrect because the wording is clear in this instance to mean the respondent having control over the applicant.
It was submitted that the applicant was clearly not conducting his own business and, therefore, the assertions made by the respondent that the applicant did not work at the administration office are immaterial in the ultimate determination of an employer-employee relationship.
The applicant maintained that there was no evidence to support the respondent’s submission that the applicant undertook work voluntarily and thus was not entitled to wages. The applicant performed work based on the duties outlined in the Agreement, and the “position description”, more specifically.
In relation to the Independent Contractors Act 2006 (Cth) (“Independent Contractors Act”), the applicant submitted that the respondent’s claim stating a Court does not have power to vary a terminated contract cannot be accepted. That is, the respondent submitted that the Independent Contractors Act does not apply to the respondent because it is not a constitutional corporation. However, the business activities of corporations formed in Australia indicate whether they are “trading or financial corporations” within the ambit of s 51(xx) of the Australian Constitution. The applicant stated that Steytler P at [68] in Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2) (2008) 252 ALR 136 set out the relevant principles in determining whether a body corporate constitutes a trading corporation within the meaning of s 51(xx) of the Australian Constitution:
(a)“A corporation may be a trading corporation even though trading is not its predominant activity.
(b) However, trading must be a substantial and not merely a peripheral activity.
(c)In this context, "trading" is not given a narrow construction. It extends beyond buying and selling to business activities carried on with a view to earning revenue and includes trade in services.
(d)The making of a profit is not an essential prerequisite to trade, but it is a usual concomitant.
(e)The ends which a corporation seeks to serve by trading are irrelevant to its description. Consequently, the fact that the trading activities are conducted in the public interest or for a public purpose will not necessarily exclude the categorisation of those activities as "trade".
(f)Whether the trading activities of an incorporated body are sufficient to justify its categorisations as a "trading corporation" is a question of fact and degree.
(g)The current activities of the corporation, while an important criterion for determining its characterisation, are not the only criterion. Regard must also be had to the intended purpose of the corporation, although a corporation that carries on trading activities can be found to be a trading corporation even if it was not originally established to trade.
(h)The commercial nature of an activity is an element in deciding whether the activity is in trade or trading.”
Local government councils have, in the past, been held to be trading corporations, as per the cases cited in Burrows v Shire of Esperance (1998) 86 IR 75.
The applicant concluded that Merrimans could be categorised as a trading corporation, as indicated by its financial statements for the year ended 30 June 2022, at page 327 of the Court book and beyond showcasing the its trade and other receivables.
THE COMMON LAW TEST FOR DETERMINING AN EMPLOYMENT RELATIONSHIP
Having established that the Agreement in question is a valid contract for the purposes of contractual performance and not a tenancy per say, it is now necessary to delve into the common law to undertake the characterisation exercise.
Accordingly, in Australia the employment relationship is determined by virtue of statute and common law principles, whose role is coalescent in informing the construction and content of an employment contract: (see; Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at 178 [1]).
A contract may subsist in both oral and written form, and in some instances, will be impacted by subsequent agreement or conduct which varies the original terms of the contract so as to attract an estoppel claim. The following proposition was laid down by Denning L.J. in Solle v Butcher [1950] 1 KB 671 at [691], referring to Bell v Lever Brothers Ltd [1932] AC 161 at [217] – [227]:
…once a contract has been made, that is to say, once the parties, whatever their inmost states of mind, have to all outward appearances agreed with sufficient certainty in the same terms on the same subject matter, then the contract is good unless and until it is set aside for failure of some condition on which the existence of the contract depends, or for fraud, or on some equitable ground.
Therefore, while the Court is cognisant of these equitable claims, it does not consider them relevant to these proceedings as both parties do not dispute the existence or application of the terms of the Agreement: (see; Personnel Contracting at [42]). Additionally, there are species of cases in which the terms and conditions in question are not present in the written contract. Again, this is not such a case where that is a subject of contention amongst the parties, nor one that the Court considers a pressing matter for judicial determination.
Historically, the employment relationship was appraised by statute prior to the law of contract assuming the dominant function. And now, consequently – while principally vested in the law of contract – the employment relationship is still subject to, and affected by, statutory provisions as well as awards included in statute.
Befittingly, their Honours Kiefel CJ, Keane and Edelman JJ in Personnel Contracting affirmed the position in WorkPac Pty Ltd v Rossato (2021) 95 ALJR 681 at 693 [56] – [57], stating at [43]:
…where the terms of the parties’ relationship are comprehensively committed to a written contract, the validity of which is not challenged as a sham nor the terms of which otherwise varied, waived or the subject of an estoppel, there is no reason why the legal rights and obligations so established should not be decisive of the character of the relationship.
Their Honours simply restated what the law was by disapproving of the conviction that where a comprehensive written contract exists, the performance of the parties could be considered in an auxiliary light. By their Honours’ account, it should not. Their Honours in Personnel cited a passage from Australian Mutual Provident Society v Chaplin (1978) 52 ALJR 407 (“Chaplin”) at [409] – [410] which had drawn on the Privy Council in Narich Pty Ltd v Cmr of Pay-roll Tax [1983] 2 NSWLR 597 (“Narich”) at [601], stating at [45] of the High Court decision:
…where there is a written contract between the parties whose relationship is in issue, a court is confined, in determining the nature of that relationship, to a consideration of the terms, express or implied, of that contract in the light of the circumstances surrounding the making of it; and it is not entitled to consider also the manner in which the parties subsequently acted in pursuance of such contract.
Their Honours went on to highlight at [48] the following conception: to interpret the cases proceeding Chaplin and Narich as encouraging a departure from the well-established law in those authorities would be a “large step” and inapt to their central premise.
In stating so, their Honours departed from the primary judge and Full Federal Court’s approach by raising caution of the “multifactorial test” to determine whether the applicant in that case was an employee. Their Honours described the multifactorial test as “problematic in a number of respects” (Personnel Contracting at [32]). This Court will not be conducting its examination based on the multifactorial approach.
In variance, in JMC v Commissioner of Taxation at [12] – [14], the Court noted that Gageler and Gleeson JJ in Personnel Contracting deviated on this principle from their Honours Kiefel CJ, Keane and Edelman JJ:
[12] The true principle, in accordance with what we understand to have been the consistent doctrine of this Court until now, is that a court is not limited to considering the terms of a contract and any subsequent variation in determining whether a relationship established and maintained under that contract is a relationship of employment. The court can also consider the manner of performance of the contract. That has been and should remain true for a relationship established and maintained under a contract that is wholly in writing, just as it has been and should remain true for a relationship established and maintained under a contract expressed or implied in some other form or in multiple forms.
[13] Gageler and Gleeson JJ were of the view that Narich contained an error of principle which they explained in the following way at [130]:
The error of common law principle in Narich lay in conflation of the distinction between the relationship of employment and the contract under which the relationship is established and maintained. Focusing exclusively on the terms of the contract loses sight of the purpose for which the characterisation is undertaken. That purpose is to characterise the relationship.
[14] Their Honours also stated at [132]:
There will be cases, of which Narich and Chaplin may well have been examples, in which an examination of the manner of performance of a written contract will reveal nothing of significance about a relationship in fact established and maintained by the parties under the contract that cannot be gleaned from an examination of the contractual terms. But there will be cases where, without any variation to the terms of a written contract, the true character of a relationship in fact established and maintained under the contract will be revealed through the manner of the performance of the contract. That will be so where the terms of the written contract are sufficiently opaque or obscure to admit of different manners of performance. And it will be especially so where such a contract is a standard form written contract couched in language that might arguably have been chosen by the putative employer to dress up the relationship to be established and maintained as something somewhat different from what it might turn out to be.
Moreover, Gordon J in Personnel Contracting, albeit in a slightly dissimilar judicial register of mind to Gageler and Gleeson JJ, stated at [162]:
…the totality of the relationship which must be considered is the totality of the legal rights and obligations provided for in the contract, construed according to the established principles of contractual interpretation. In such a case, the central question neither permits nor requires consideration of subsequent conduct and is not assisted by seeing the question as involving a binary choice between employment and own business.
In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (“Brodribb”) at [29] and Hollis v Vabu (2001) 207 CLR 21 (“Hollis”), the characterisation exercise was said to be determined by reference to the “totality of the relationship between the parties”. Their Honours Kiefel CJ, Keane and Edelman JJ in PersonnelContracting remarked on the correct application of the totality test at [34]:
It was not suggested that this assessment should proceed as if the court is running down items on a checklist in order to determine a balance of ticks and crosses. It has never been suggested that the factors identified to be relevant are of equal weight in the characterisation of the relationship. Some understanding as to the relative significance of the various factors is desirable, both to minimise the extent to which application of the test may produce an impressionistic and subjective outcome on the one hand, and to avoid the injustice of a mechanistic checklist approach on the other.
In the spirit of this statement, this Court will endeavour to avoid resorting to a “mechanistic checklist” and rather, employ a stratagem that considers the factors in an objective light, without disinterring the picayune or irrelevant details ancillary to the actual Agreement.
In Connelly v Wells (1994) 55 IR 73 at [74], Gleeson CJ cited Narich Pty Ltd v Cmr of Pay-roll Tax [1983] 2 NSWLR 597, remarking:
Where the relationship between two persons is founded in contract, the character of the relationship depends upon the meaning and effect of the contract. In the absence of a suggestion that a contract was varied after it was originally made, its meaning and effect must be determined as at the time it was entered into. If the contract is in writing, then the court which is considering the nature of the relationship between the parties is directed to an examination of the terms of the written agreement in the light of the circumstances surrounding its making.
In ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; 96 ALJR 144 (“Jamsek”), Kiefel CJ, Keane and Edelman JJ pointed out at [6] that the Full Federal Court’s approach suffered from two errors during the process of characterisation:
The first was the significant attention devoted by that Court (and indeed the primary judge) to the manner in which the parties actually conducted themselves over the decades of their relationship. That was thought to be necessary because those courts took the view that a proper characterisation of the totality of the relationship required a consideration of how the parties’ contract played out in practice. The second was the Full Court’s reasoning that the disparity in bargaining power between the parties affected the contract pursuant to which the partnerships were engaged, so that the “reality” of the relationship between the company and each respondent was one of employment.
It is in the interests of this Court to avoid erring in the same fashion by employing a modus operandi consistent with the High Court’s reading of the common law of contractual characterisation.
Based on the High Court’s approach in both Personnel Contracting and Jamsek, this Court is of the view that where a written contract exists between the parties, the Court should be limited to considering the terms – both express and implied – of the contract, with regard to the surrounding circumstances and not to consider how the parties subsequently acted in the performance of the contract in question: (see; Personnel Contracting at [45]). However, that is not to say that the characterisation process should not pay heed to the “totality of the relationship between the parties” against the indicia of employment established in different authorities (Personnel Contracting at [61]). In the current case, it is important to recognise that regard must be had to the rights and duties propounded by the parties in the Agreement, and not simply the way the parties have purported to act devoid of any regard to their contractual obligations.
CONSIDERATION
Was an employment relationship created?

It is not doubted that the parties were free to contract upon the rights and obligations to which they are now bound, however, this Court is required to determine the character of the relationship upon which those rights and obligations are constructed: (see; R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 at [151]).
Opinions on how this Court should construe the law and insights on matters of law, as provided by both parties, should not be afforded great weight because “the opinion of the parties on a matter of law is irrelevant”: (see; Personnel Contracting at [66]). The respondent’s submissions had some merit when stating that the “label” prescribed by the parties to describe their relationship will rarely assist the Court. This was made clear in Personnel Contracting at [66]; that even if it is a case where “descriptive language” is selected by the parties, and that language can inform the objective understanding of the terms of the contract, parties’ descriptions of their respective relationship nonetheless will not greatly assist the Court. This is why the Court must have regard to consider, independently, the relationship between the parties with reference to their rights and obligations.
In determining whether an employment relationship was created, the High Court in Personnel Contracting stated at [36]:
The value of the “own business/employer’s business” dichotomy in determining whether a person engaged to undertake work for another is an employee of that other has long been recognised.
It follows that this Court will characterise the relationship between the parties based on a determination of whose “business” the applicant was engaged in at the time: (see; Braxton v Mendelson (1922) 233 NY 122 at [124]). That analysis follows on below.
Running one’s “own business”: The applicant served Merrimans
The respondent maintained that in determining if the applicant was running his own business or working in Merrimans’ business was not a matter of “central importance”. That is misguided. In order to rationally determine whether the applicant was an employee of the respondent, it is crucial to consider one of the prime elements of employment itself: whether the applicant was carrying on business on his own account.
In Marshall v Whittaker’s Building Supply Co (1963) 109 CLR 210 (“Marshall”), Windeyer J at [217] suggested that the distinction between an employee and independent contractor is:
…rooted fundamentally in the difference between a person who serves his employer in his, the employer’s, business, and a person who carries on a trade or business of his own.
The plurality in Hollis outlined that Windeyer J’s statement could be understood to mean that the intricacies of “representation and…identification with the alleged employer” connote a relationship of employment. In other words, their Honours were implying that an independent contractor “carries out his work, not as a representative but as a principal”: (see; Hollis at [39], citing Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at [48]).
It would be perverse to say that despite the applicant having no capital or financial responsibility, he would still constitute an independent contractor. It was best summarised in Lehigh Valley Coal Co v Yensavage (1914) 218 F 547 (2nd Cir) at [552] – [553] in which the Court remarked that if the mine owner’s objections were accepted, the Court would in effect also be accepting that:
[552] …[t]he [mine owner] is therefore not in the business of coal mining at all, in so far as it uses such miners, but is only engaged in letting out contracts to independent contractors, to whom they owe as little duty as to those firms which set up the pumps in their mines. …
[553] It is absurd to class such a miner as an independent contractor … He has no capital, no financial responsibility. He is himself as dependent upon the conditions of his employment as the company fixes them as are his helpers. By him alone is carried on the company’s only business; he is their ‘hand,’ if any one is. Because of the method of his pay one should not class him as though he came to do an adjunctive work, not the business of the company, something whose conduct and management they had not undertaken.
This statement has merit and serves relevance in this case too. Was Merrimans simply not running a land council at all, in so far as it used the applicant’s labour, but did so only because the applicant “volunteered” to do so? And was it also the case that Merrimans had no say in who “volunteered” or helped to “caretake” or to maintain its grounds, because any person could conduct the work so as long as they did so on their own independent accord? That cannot be so because it would disregard the obligations imposed upon the applicant by the respondent in the Agreement.
This holds further importance in the later considered aspect of control in which the applicant claims the respondent directed him to conduct certain jobs and the respondent alleges that the applicant volunteered to complete such tasks without the direction of the respondent. Fundamentally, Merrimans’ business was to run a council and the applicant agreed to upkeep the grounds of that council in return for the provision of accommodation and electricity.
The Court is satisfied that it is plain upon both the face of the Agreement and the applicant’s conduct in performance of the Agreement that he was not carrying on his own business nor volunteering. This is the case because the Agreement sets out the following features and obligations which the applicant was required to comply with:
(a)Ensuring the area was secured;
(b)Keeping external areas tidy and maintained;
(c)Keeping the gardens clean, tidy and weeded regularly;
(d)Reporting any issues to Merrimans which require expenditure for work purposes;
(e)Reporting all break-ins, vandalism or abuse to both Merrimans and the police;
(f)Adhering to Merrimans’ procedures and policies as they relate to grievances and other guidelines; and
(g)Performing other duties as directed.
Additionally, the respondent was also authorised to:
(a)Undertake an annual review, including an inspection of the premises; and
(b)Give one months’ notice of termination to the applicant.
Such duties, rights and obligations are consistent with that of a person who engaged in the business of another as an employee. To put it differently, the respondent would not have included the above terms in the Agreement had it not intended the applicant to comply with them. The applicant’s adherence to such terms were central to Merrimans’ upkeep of the property and surrounding areas for community use.
In Jamsek, the two truck drivers as part of a “partnership” were found to have engaged in the conduct of their own business. That is primarily because the drivers conducted activities indicative of a partnership and running their own business, including: purchasing their own vehicles to make their deliveries, invoicing ZG Operations upon delivering the goods, and receiving payment for their services. Thus, it is not the case here like in Jamsek where the applicants were running their own business and making their own profit.
Furthermore, it is transparent from Chaplin – as endorsed by the High Court in Brodribb and not discarded in Personnel Contracting – that delegation is a solid indication of someone who constitutes an independent contractor; (see: JMC v Commissioner of Taxation at [73]). That is, the existence of the right to subcontract or delegate is inconsistent with an employee relationship. In JMC v Commissioner of Taxation at [75], the following was asked:
Whatever the precise language deployed in a contract, it is plain enough that, if a person engaged to perform work has a contractual right to have someone else perform that work, that is a matter which at the very least tends against a conclusion that the person is an employee. The existence of the right is inherently inconsistent with an employee relationship. In the absence of significant countervailing considerations, how can you be an employee if, within the scope of the contract, you can lawfully get someone else to perform the entirety of your contractual obligations, whether for a short period, or for a longer period?
The applicant in the current case did not delegate, nor could he subcontract another entity or any additional persons to perform his work, which is consistent with the view that he was not an independent contractor.
Therefore, as per the test set out in Marshall by Windeyer J, it would be unreasonable to suggest that the applicant was running his own business. This is particularly so because the applicant was labouring via the understanding that he would be receiving the agreed upon benefits of accommodation and electricity at the cost of the respondent.
The applicant’s submissions must stand on this point. The applicant was not in business on his own account.
Control
The premise of the right to control was outlined in Personnel Contracting at [74], citing Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 at [571] and Brodribb at [24] and [36]:
…it is the right of a person to control the work of the other, rather than the detail of the actual exercise of control, which serves to indicate that a relationship is one of employer and employee.
This makes clear that the focus must remain on the terms of the Agreement rather than the parties’ subsequent performance of them.
Similarly, in JMC v Commissioner of Taxation, their Honours also drawing on Brodribb at [24] and [29], stated that:
[68] … the importance of control to the characterisation of the relationship as exposed by the written contract lies in the right to do something, not whether the right has in fact been exercised.
This is relevant to the current case. In oral evidence, Ms Greenaway denied that the applicant would ask for her permission to perform work “regularly”. Ms Greenaway asserted that the applicant would ask if he could help with anything roughly on a fortnightly basis in order to occupy himself. However, whether the applicant requested to conduct work or whether he was directed to do so by Ms Greenaway is not the central question; rather the central question is this: did the Agreement grant the respondent the right to instruct the applicant to perform in a certain manner? The answer to this lies in the “Duties” section of the Agreement where it is stated that the respondent could ask the applicant to perform “other duties as directed”. It is tacit that the term “as directed” gave the respondent the power to instruct the applicant to perform whichever work on the premises the respondent saw fit. Whether such an order was actually given, and whether the applicant actually performed it, is irrelevant. The possibility of the applicant potentially being held against this standard due to the terms in the Agreement, if he was not so already, is the key consideration.
Further, in JMC v Commissioner of Taxation at [99], one of the matters considered by the Court was whether the “control identified…related to control of when and where the teaching services were to be provided” by the alleged employee. In the same light, it becomes necessary to investigate whether the control identified in the current case extended to control of when and where the applicant’s services would need to be provided. Here, the aspect of “where” is relatively straightforward. The applicant would be well-aware of which areas of the grounds or property required tending to; either by virtue of a representative of the respondent requesting the work, or by the applicant’s own accord. In any case, the Court notes that the applicant was acquainted with the targeted area of his work. The more serpentine examination becomes the element of when. In addition to “when” is also the consideration of “how” the applicant was required to conduct the work. That is, when and how was the applicant required to conduct the work, and by what time?
Here, the written communications between the applicant and respondent become paramount. The text messages between the applicant and Ms McVeity in Annexure ‘KD8’ in the applicant’s Affidavit of 20 December 2023 spotlight a few instances where the applicant had sent to Ms McVeity photos of the work that he completed. On most occasions, it appears that Ms McVeity did not reply, however, on one occasion at 2:03pm on 29 August 2020, she replied with the following:
Pete says thank you
This was in reply to the applicant stating that he had used “3 Phase supply sockets, Orange Main (4 wires)”. This is as descriptive as it gets between the applicant and Ms McVeity’s written correspondence in terms of the work conducted.
During oral evidence, Mr Hill was amenable to the proposition that he could direct the applicant to perform work on the property, and that if he asked the applicant to do something, the applicant would have to do it. Mr Hill stated that occasionally he would ask the applicant to perform work around the property and the applicant would follow his instructions to do so. Mr Hill advised that the interactions between himself and the applicant progressed from fortnightly or weekly discussions to daily discussions. During these discussions, the applicant would speak about the work he had performed, and Mr Hill would provide further instructions about the type of work to perform. Again, while this signifies that Mr Hill provided the applicant with instructions on performing work, it did not specify how or when that work was to manifest.
The Court has also considered the time-restraints on, and the specific nature of how the work was, to be conducted with reference to other accounts.
During oral evidence, the applicant’s solicitor directed Mr Hill to paragraph 30 of his Affidavit and questioned him on the authenticity of his statement, which claimed:
The Applicant did whatever whenever he wanted.
Mr Hill confirmed that the above was true of the applicant’s arrangement. The applicant’s solicitor reiterated to Mr Hill that this statement was untrue because the applicant would approach Mr Hill to ask him if he could keep busy with any work. Mr Hill contended that this was not the case “at all times” because the applicant would do what needed to be done from time to time because he was a caretaker. Mr Hill accepted that the applicant was not simply a tenant, but a caretaker. Mr Hill concurred that the applicant kept himself busy and did have work to do, on his own volition.
In addition to the evidence given by Mr Hill, the respondent also asserted that some of the terms of the Agreement only went “slightly beyond” a typical tenancy relationship. The respondent submitted that Merrimans “had no power” to determine when the applicant performed duties. The Court does not accept this characterisation for the reasons set out below.
The terms of the Agreement prove otherwise to all three claims outlined above. There were occasions where the applicant was expected to perform tasks in a certain manner at a specific time. Such two occasions were expressly outlined in the Agreement:
•Report Bushfires and other critical incidents to the appropriate authority immediately and advise Merrimans when able; and
•An Action/Task List may be generated from that review which should be completed over the intervening 12 months.
(emphasis added).
These terms favour characterisation as an employer-employee relationship.
Additionally, there were other practical occasions which point towards the applicant’s lack of discretion in performing his duties, especially in relation to the events at the Centre. Notably, the degree of involvement of the applicant in the running and establishment of the Centre is disputed between the applicant and respondent. During oral evidence, Ms Greenaway remarked that around April 2014 she had a conversation with the applicant about the possibility of the Centre being opened for broader public access, which was a goal of Merrimans. Ms Greenaway claimed that the applicant had no role in that venture, however, she agreed that the premise of that goal may have been discussed with the applicant more generally. The applicant’s solicitor put to Ms Greenaway that in one of her conversations with the applicant, the applicant assured Ms Greenaway that he would do all the necessary work to ensure that this goal of the Centre being open to the public was fulfilled. Ms Greenaway did not recall this conversation with the applicant. Ms Greenaway alleged that the applicant did not make a significant difference to the Centre because he did not work there, maintaining that he only took care of the dwelling. However, it follows that there were accounts where the applicant was required to help at the Centre at different points in time.
In the applicant’s Affidavit of 20 December 2023, he outlined the following with regard to cultural events taking place at the Centre:
[145] After the cultural events were over around 2:00pm or 3:00pm, I would close the gate and clean after the community members, including the playground, the grass, rooms and the toilets.
[146] In each of these events, I would be opening and closing the gates, making sure the property was ready for the event and also the general clean up after the event. If the event required certain tables and chairs to be positioned in a certain way, I was there to help and did that.
[147] On a regular basis, on Mother’s day or when the Red Cross would organise indoor activities with children, on each and every occasion, I would open a heavy oval and dismantled table, place it in the middle of the room, and after each activity was over, I would close the table and place it near the wall again, so the children had more playroom. Such activities would usually start before midday and finish around 2:00/3:00pm.
It is clear that time was of the essence in both the two agreed terms and during the aforementioned situations. It would have required the applicant to be present at a certain time of the day or night and to set up the Centre in a specific manner as to the liking of the respondent. In particular, the applicant reiterated the precise nature of the work required, that he was to ensure the chairs were “positioned in a certain way” as well as arranging the remaining furniture. These activities are indicative of the respondent requiring from the applicant a very specific subset of work, at a particular time, and to a certain standard.
Their Honours’ point in Personnel Contracting at [75] sufficiently encapsulates the applicant’s situation in the present case:
There was no suggestion that the work Mr McCourt agreed to do would involve the exercise of any discretion on his part, either as to what he would do or as to how he would do it. Mr McCourt’s obligation to “supply … labour” in cooperation with Hanssen necessarily meant that he agreed, for the duration of the assignment, to work in accordance with Hanssen’s directions. He was simply not permitted to do otherwise. Had Mr McCourt breached cl 4(a), Construct (not Hanssen) would have been entitled to terminate the ASA.
Similarly, there was no term in the Agreement which indicated that the applicant possessed a degree of control or discretion as to how he could carry out the duties when he was simply directed to carry out certain activities “immediately”, “adhere at all times to Merriman’s policies and procedures” and/or perform “other duties as directed”. Had the applicant failed to do so, the respondent was at liberty to either create an “action task” for him which had to be completed within 12 months or simply provide one month’s notice notifying him of his termination.
The applicant’s duties of cleaning after community members following events, ensuring the safety of the Centre, assisting in the re-opening of the centre were all crucial to the business of Merrimans carrying out community events. The applicant’s labour was imperative to Merrimans’ objective of holding these events. Therefore, without the applicant’s “subservience, that labour would be of no use” to Merrimans; (see: Personnel Contracting at [76]). Thus, the respondent’s right to control the applicant was imperative to its operation as a Land Council and its significance should not be undermined by claims that the applicant proceeded to work on his own accord and at his own leisure.

This is not a matter where the applicant was always free to conduct work whenever he wished to of his own volition, despite the evidence of Ms Greenaway and Mr Hill suggesting otherwise. The applicant could be directed to perform work, to perform it at a certain, specific time, and within a specified timeframe. How he undertook such activities was also at the behest of the respondent. It follows that, the Agreement read more holistically, provided for a degree of control over the applicant, including how, when and where the applicant was required to perform his duties.
The “non-exclusive” nature of casual employment
The respondent submitted that the applicant had the ability to uphold another job alongside his caretaking arrangement:
Merrimans LALC did not have power to tell Mr Dwight when to perform duties; indeed, given this freedom, Mr Dwight could have worked for another entity at times that suited him.
The primary judge in Personnel Contracting at [143], [146] concluded that the fact that:
Mr McCourt was free to accept or reject any offer of work, and that he was not precluded from working for others, were factors which contraindicated a characterisation of his relationship with Construct as one of employment.
On appeal, the High Court rejected this line of thinking in relation to casual employees and said the primary judge erred, stating at [84]:
It is commonplace that casual employees do not work exclusively for one employer. In addition, Mr McCourt’s right pursuant to cl 5(b) of the ASA to accept or reject any offer of work from a builder must be understood subject to his promise to Construct in cl 4(c) of the ASA to “supply labour … for the duration required by [Hanssen]”. His right to reject an offer of work was exercisable at the level of an overall engagement with Hanssen, rather than on the basis of a new engagement each day.
In the same light, this could also be extended to part-time workers who do not work exclusively for one employer and can maintain commitments to multiple engagements. “Exclusivity” is hardly conducive to an employer-employee relationship; nor is exclusivity the bedrock of establishing employment.
So, while the applicant in the current case was able to pursue other opportunities, that did not preclude him from being an employee of Merrimans, whether that be on a casual or part-time basis. It follows that the applicant in this case could still be characterised to maintain an employment relationship with the respondent, that is, one of part-time or casual employment, whilst simultaneously having the ability to uphold employment elsewhere. The lack of exclusivity does not preclude the existence of an employment relationship in this instance.
The Court is satisfied based on the nature and scope of the duties performed by the applicant that it was not a full-time job; rather it was a part-time job. In this regard, the Court does not accept the applicant’s evidence that he worked each weekday from either 8:30am or 9:00 am to 4:00pm or thereabouts. The applicant worked the hours needed to undertake the tasks set out in the position description as well as any additional tasks he may have been directed to perform from time to time. The applicant was not a casual employee. The Court is satisfied the applicant would have worked four hours per day, on weekdays or on average 20 hours per week.
The law on off-setting, “same purpose” and the requirement to pay minimum wage
The respondent submitted that even if the Agreement created an employment relationship, that relationship was of a dual nature, both a tenancy contract and a casual employment contract. In addition, the respondent asserted that because no work was ever requested of the applicant, no claim could stand on the employment front.
In Manchee v BTIG Australia Ltd [2022] FedCFamC2G 813, this Court found that the payment of commissions to an employee as a substitute for the employee’s salary did not discharge the employer of its obligation to pay wages pursuant to s 45 of the FW Act.
It was also made clear in Ray v Radano [1967] AR (NSW) 471 that an employer who pays an amount to an employee for a particular purpose cannot then apply that payment to another purpose or obligation. In that case, Sheldon J stated at [478] – [479]:
… the employer cannot allocate to one subject matter what he has already paid in pursuance of a promise related to another subject matter. That would be approbating and reprobating.
Furthermore, Rares J in Fair Work Ombudsman v Transpetrol TM AS [2019] FCA 400 at [110] reiterated the position of the Full Federal Court in Poletti v Ecob (No 2) (1989) 31 IR 321, providing that:
…the Full Court held that when a contract of employment provided that a sum of money was payable to and receivable by an employee for a specific purpose, over and above, or extraneous to, an entitlement under an award made pursuant to statute, the employer could not rely on the payment of that sum (due under the specific contractual provision) in satisfaction of its liability under the award. Similarly, their Honours held that, if an employer (as debtor) designated or appropriated a payment to the employee (as creditor) to satisfy a particular debt or liability, the employer could not later resile from that designation or appropriation in order to claim that the payment should be treated as satisfying a different debt or liability due to the employee under an award.
The issue of “same purpose” or “close correlation” of payment expended also becomes a relevant appraisal in this matter. On that front, Justice Anderson in Australia and New Zealand Banking Group Limited v Finance Sector Union of Australia (2001) 111 IR 227 at 239 [50] – [54] provided a compendious account of the position in James Turner Roofing Pty Ltd v Peters [2003] WASCA 28:
The Full Court held that because the payment under the scheme was itself and in reality a payment in respect of untaken or unused long service leave it could be set off against the liability under the award to make a payment on that account. The Court held that whilst there must be a close correlation between the nature of the contractual obligation and the nature of the award obligation before one could be off set against the other it was a matter of looking to see whether both the award entitlement and the contractual payment arose out of the same agreed purpose.
Here, the consideration must be whether there was a close correlation between the subject matter of the obligations under the Agreement and the employer’s obligations under ss 45 and 323 of the FW Act.
In the current case, the applicant was offered accommodation as “recompense” for the duties he was required to perform on a regular basis. There was no correlation between the subject matter of the obligations outlined under the Agreement under which the applicant was given free accommodation and the obligations prescribed under the FW Act. Therefore, the accommodation could not justify the setting-off of wages. The accommodation was not for the same purpose as the wages which were required to be paid by the respondent. The former concerned the provision of real estate, and the latter was in relation to the wages paid for the labour and hours of work performed by the applicant.
The respondent is unable to off-set its payment of wages and statutory requirements by substituting those statutory obligations with accommodation.
Damage to the car
The Court is not satisfied so as to agree with the claim that the respondent failed to provide a safe system of work for the applicant.
The applicant alleged that the damage caused to the applicant’s car was as a result of the respondent failing to take reasonable care to avoid injury to the applicant. However, no evidence has been provided to the Court which has purported to showcase that there was an omission by the respondent which led to the applicant’s car being damaged.
The Court is satisfied that this was criminal damage occasioned by a third-party for which the respondent is not responsible nor financially liable.
Was the Applicant covered by the Amusement, Events and Recreation Award?
The next issue is whether the applicant was covered by the Award.
The applicant had a number of set duties, some of which could be performed at times of the applicant’s choosing, for example, keeping the gardens clean and tidy. Some duties were time critical, such as reporting trespassing by the Wallaga community, or reporting bushfires or other critical incidents, including incidents that occurred out of normal working hours.
The nature of the work was that of a caretaker/groundskeeper. While the Court accepts the Centre had regular events, and the applicant may have assisted in the set up for meetings and the like and subsequent clean up, the Court does not accept that the Centre was “for the amusement, events and recreation industry, meaning the operation of heritage tourism and cultural centres.”
The Centre was not open to the general public at all times and did not engage in amusements or other tourism activities. Some cultural activities may have taken place; however, this was restricted to members of the local Indigenous community.
The applicant was not employed under the Award, though the Court, however, is satisfied the respondent was obliged to pay the applicant the minimum relevant wage under the FW Act.
The applicant is entitled to a declaration that the respondent breached s 323 of the FW Act by not paying the applicant, in full, his minimum wage.
Are the Other Breaches of the FW Act Proven?
It is common ground that the applicant was not paid any wages or other entitlements other than access to free accommodation. Having determined the applicant was a part-time employee, working four hours per day or 20 hours per week, under the FW Act, the Court is satisfied the applicant was an employee for the purposes of the SGA Act from 8 May 2014 to 5 November 2021 by operation of s 12(3) of the SGA Act. It also follows that the applicant was entitled to a long-service leave payment pursuant to the LSL Act. This was not paid on termination.
Again, there is no factual dispute that the respondent did not provide payslips to the applicant and accordingly breached s 536(2) of the FW Act. Nor did the respondent accrue or pay the applicant any annual leave during his employment period or upon termination in breach of s 87(1)(2) and s 90(2) of the FW Act.
The Court will make the declarations set out above. The parties are to confer and agree, if possible, on the wages, long service leave and annual leave that the applicant is entitled to based on the factual findings made by the Court.
The Court will hear from the parties as to the appropriate penalties to be imposed for the breaches found to have been proved at a separate penalty hearing.
CONCLUSION
Based on a consideration of all of the relevant evidence, the Court is satisfied that there was an employment relationship between the applicant and the respondent. Because the parties have somewhat comprehensively outlined the terms of their relationship within the written Agreement before this Court, and accepted that its validity is not in dispute, the characterisation of their relationship cannot constitute anything other than that of part-time employment. The applicant is entitled to a declaration that between 8 May 2014 to 5 November 2021 he was an employee of the respondent. Further, the Court rejects the proposition that the applicant performed work voluntarily. What must now follow is an assessment by the parties in relation to damages and the hours worked by the applicant during the course of his employment.

I certify that the preceding two-hundred and nine (209) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.
Associate:
Dated: 17 May 2024

File number:	SYG 1559 of 2022
Judgment of:	JUDGE D HUMPHREYS
Date of judgment:	17 May 2024
Catchwords:	INDUSTRIAL LAW – Multiple contraventions of Fair Work Act 2009 (Cth) – Nature of employment relationship – Characterisation of employment relationship – Employee or tenant – Whether applicant employee of respondent – Right to control – Right to subcontract or assign – Where applicant and respondent entered into in a caretaker arrangement – Contracts – Contractual terms – Contractual interpretation – Where respondent in business as local Aboriginal land council – Application allowed – Applicant held to be part-time employee.
Legislation:	Australian Constitution s 51(xx) Fair Work Act 2009 (Cth) ss 13, 14, 15A, 45, 87, 90, 323, 536 Independent Contractors Act 2006 (Cth) Superannuation Guarantee (Administration) Act1992 (Cth) s 12 Land Rights Act 1983 (NSW) s 51 Long Service Leave Act 1955 (NSW) Fair Work Ombudsman, Amusement, Events and Recreation Award 2010, MA000080, 1 January 2010 Fair Work Ombudsman, Amusement, Events and Recreation Award 2020 MA000080, 1 June 2020
Cases cited:	Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2) (2008) 252 ALR 136 Australia and New Zealand Banking Group Limited v Finance Sector Union of Australia (2001) 111 IR 227 Australian Mutual Provident Society v Chaplin (1978) 52 ALJR 407 Australian Woollen Mills Pty Ltd v Cth (1953-1954) 92 CLR 424 Braxton v Mendelson (1922) 233 NY 122 Burrows v Shire of Esperance (1998) 86 IR 75 CFMEU v Personnel Contracting Pty Ltd [2022] HCA 1 Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 Connelly v Wells (1994) 55 IR 73 Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd (1915) AC 847 Efex Group Pty Ltd v Bennett [2024] FCAFC 35 Fair Work Ombudsman v Transpetrol TM AS [2019] FCA 400 Hart v Mills (1846) 15 LJ Ex 200 Hollis v Vabu (2001) 207 CLR 21 James Turner Roofing Pty Ltd v Peters [2003] WASCA 28 J H Nelson Pty Ltd (1947) 74 CLR 629 JMC Pty Limited v Commissioner of Taxation [2022] FCA 750 L’Estrange v F Graucob Ltd [1934] 2 KB 394 Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207 Lehigh Valley Coal Co v Yensavage (1914) 218 F 547 (2nd Cir) Manchee v BTIG Australia Ltd [2022] FedCFamC2G 813 Marshall v Whittaker’s Building Supply Co (1963) 109 CLR 210 Merritt v Merritt [1970] 1 WLR 1211 Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37 Poletti v Ecob (No 2) (1989) 31 IR 321 R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 Ray v Radano [1967] AR (NSW) 471 Solle v Butcher [1950] 1 KB 671 Taylor & Ors v Johnson (1982–1983) 151 CLR 422 Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148 Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCCA 4 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Visy Paper Pty Ltd v Glass Granulates Pty Ltd [2014] NSWSC 1387 at [33] World Book (Australia) Pty Ltd v Commissioner of Taxation (Cth) (1992) 46 IR 1 ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; 96 ALJR 144 Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 Pollock, Frederick, Principles of contract: a treatise on the general principles concerning the validity of agreements in the law of England. (8^th edition, 1911)
Division:	Division 2 General Federal Law
Number of paragraphs:	209
Date of last submission/s:	30 April 2024
Date of hearing:	13 March 2024
Place:	Parramatta
Solicitor for the Applicant:	Mr Aslanian (Connect Legal)
Counsel for the Respondent:	Mr Meagher
Solicitor for the Respondent:	Hall & Wilcox

SYG 1559 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	KEVIN DWIGHT Applicant
AND:	MERRIMANS LOCAL ABORIGINAL LAND COUNCIL Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	17 MAY 2024